United States: Update on the U.S. Entry Ban

An entry ban remains in place for certain foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. The U.S. government has provided some limited guidance on implementation of the order, but the current travel situation remains fluid.

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On Friday, January 27, 2017, U.S. President Donald J. Trump signed an executive order that prohibits foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen from entering the United States for 90 days. The order was put in place immediately and resulted in confusion at U.S. ports of entry and abroad. The U.S. government has since provided some limited guidance on implementation of the executive order, and federal courts have issued orders that limit the ban to some extent, but the current situation remains very fluid.

The following is Fragomen's update on the status of the U.S. entry ban. Because this guidance is subject to frequent change, please contact your designated Fragomen professional before traveling to or departing from the United States.

For purposes of the following, the term "country of concern" refers to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen. Unless otherwise indicated, the term "dual national" refers to an individual who is a national of a country of concern and another foreign country.

Who is Subject to the Ban?

The entry ban applies to nationals of the seven countries of concern. At present, the interpretation of the scope of the ban includes individuals who hold a passport from or were born in one of the seven countries, despite public information limiting application of the executive order to passport holders from the seven countries. In addition, the entry ban may apply if the laws of a country of concern considers a person to be a national (for instance, because he or she was born abroad to a parent who is a national of that country), though this is less clear.

Though the terms of the executive order are not precise, individuals with dual nationality in one of the countries of concern and any other foreign country appear to be banned by the executive order. Fragomen is working to confirm reports that certain dual nationals, including UK citizens, may be exempt from the executive order, but unless and until there is authoritative and reliable government confirmation to the contrary, dual nationals appear subject to the entry ban.

Lawful Permanent Residents Who Are Nationals of a Country of Concern

Lawful permanent residents (LPRs) who are nationals of a country of concern are not subject to the ban unless the U.S. government deems that they pose a national security threat. Initially, the U.S. government prohibited the entry of all LPRs from a country of concern, but after a written statement from Homeland Security Secretary John Kelly, this prohibition will not apply unless the U.S. government has significant derogatory security information pertaining to an LPR.

As such, LPRs may travel to the United States, but should expect close and lengthy questioning before they are admitted to the United States. This includes secondary inspection with searches of phones, laptops and other electronic devices. LPRs who are nationals of a country of concern should carry a copy of Secretary Kelly's statement when they travel internationally.

Nonimmigrants Who Are Nationals of a Country of Concern

Nonimmigrants who are nationals of a country of concern will not be issued a U.S. nonimmigrant visa or be permitted to enter the United States for the duration of the ban. Though the executive order allows for a discretionary waiver of the entry ban in the national interest, this is not expected to be available except in extraordinary circumstances. The government also has not yet provided a process for foreign nationals to follow in seeking a waiver.

Other Lawful Permanent Residents and Nonimmigrants

LPRs and nonimmigrants who are not from a country of concern but have traveled to one of the seven countries should expect to be questioned closely when entering the United States. All LPRs and nonimmigrants should expect heightened entry procedures when returning to the United States in the current environment.

U.S. Citizens

U.S. citizens are not subject to the entry ban, including those with dual nationality in the United States and a country of concern. However, U.S. citizens who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen should expect to be questioned closely when reentering the United States.

Impact of Entry Ban on USCIS Adjudications

There are reports that USCIS adjudicators have been told to suspend work on cases filed by or on behalf of foreign nationals subject to the entry ban. Though information is limited, the suspension could affect the processing of nonimmigrant and immigrant petitions, applications for employment-based adjustment of status, employment authorization documents and other employment-based applications and petitions. As such, employers and foreign nationals should expect lengthy delays.

Duration and Scope of the Entry Ban

Currently, the executive order suspends the entry of foreign nationals from the countries of concern for 90 days, or through April 27, 2017. The order could be extended beyond this date.

While the ban is in effect, the U.S. government will conduct a 60-day review of worldwide security policies. Nationals of countries that do not cooperate in the review could be added to the list of travelers subject to the entry ban.

This alert is for informational purposes only. If you have any questions about the executive order, please contact the immigration professional with whom you work at Fragomen.

Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates, (collectively known as “Fragomen Worldwide”) is the world’s largest firm dedicated to corporate immigration, and is recognized as the leading global immigration services provider.

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